[Cite as State v. Ryan , 2021-Ohio-4059.] 

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNT Y STATE OF OHIO, Plaintiff-Appellee,

- v - NICHOLAS P. RYAN, Defendant-Appellant. CASE NO. 2021-L-032

Criminal Appeal from the Court of Common Pleas

Trial Court No. 2019 CR 000677

O P I N I O N Decided: November 15, 2021 Jud g ment: Affirmed

Charles E. Coulson , Lake County Prosecutor, and Jennifer A. McGee , Assistant Prosecutor, Lake County Administration Building, 105 Main Stree t, P.O. Box 490, Painesville, OH 44077 ( For Plaintiff-Appellee )

. Jay F. Crook , Jay F. Crook, Attorney at Law, LLC, 30601 Euclid Avenue, Wick liffe, OH 44092 ( For Defendant-Appellant )

.

MARY JANE TRAPP, P.J. {¶1} Appellant, Nicholas P. Ryan (“Mr. Ryan”), appeals from the judg ment of the Lake County Court of Common Pleas, which revoked his community control and imposed a term of imprisonment after he was found guilty of violating h is community control sanctions. More specifically, Mr. Ryan agreed to abide by the rules of probation set forth by the Adult Probation Department and to follow the trial court ’s additional sanctions and

conditions.2

Case No. 2021-L-032 {¶2} Conditions and sanctions pertinent to this appeal were (1) to f ollow local, state, or federal laws; (2) to not have under his control any c ontrolled substance not prescribed by a licensed physician; (3) to have “no involvement with drugs or alcohol, including marihuana”; and (4) to “have one (1) prescribing phys ician * * * and one (1) pharmacy, and * * * to inform the Lake County Probation Departm ent of any change in providers * * *.” Mr. Ryan subsequently used his medical marij uana card to purchase marijuana on five occasions between October 23, 2020, and Novem ber 6, 2020. {¶3} In his sole assignment of error, Mr. Ryan contends the trial co urt erred in issuing “probation restrictions” that are in violation of the p rovisions of the Ohio medical marijuana control program (“the OMMCP”), R.C. Chapter 3796. {¶4} After a review of the record and pertinent caselaw, we find Mr. Ryan’s assignment of error to be without merit. Mr. Ryan acknowledged and agreed to the community control sanctions and probation rules at the time of sentencing. Despite the unambiguous terms of the sanctions and conditions, the state es tablished that Mr. Ryan used his medical marijuana card five times at a local dispensar y, which was not his listed pharmacy, without notifying his probation officer. Moreover, M r. Ryan never submitted a valid medical marijuana card into evidence at the revocation he aring or even attempted to argue medical marijuana was, for him, a medical necessity. Indeed, whether Mr. Ryan used the marijuana was not at issue since whether purchased fro m a dispensary or on the street, his urine screens demonstrated he was not using mar ijuana. In fact, Mr. Ryan, a convicted drug trafficker, admitted he was “stockpiling” it. {¶5} There is no doubt that Mr. Ryan violated the terms of his commu nity control sanctions inasmuch as marijuana in any form remains illegal und er federal law; he had a3

Case No. 2021-L-032 controlled substance without a valid prescription under his con trol; and he was using both a dispensary and a pharmacy without advising his probation offi cer, all in violation of the Lake County Court of Common Pleas/Adult Probation Department Ru les. {¶6} The judgment of the Lake County Court of Common Pleas is affirm ed.

Substantive and Pr ocedural History {¶7} In the underlying case, Mr. Ryan pleaded guilty by way of infor mation to (1) trafficking in L.S.D., a fourth-degree felony, in violation of R.C. 2925.03(A)(2), with two forfeiture specifications pursuant to R.C. 2941.1417 and R.C. 2 981.04 for contraband and a large sum of cash ($1,514); and (2) aggravated possession of drugs, a fifth-degree felony, in violation of R.C. 2924.11, with two forfeiture speci fications pursuant to R.C.

2941.1417 and R.C. 2981.04 for contraband and cash. {¶8} The presentence investigation report (“PSI”) noted that Mr. Rya n was issued a medical marijuana card on March 19, 2019, upon a recom mendation from Dr. Alan Wine for the treatment of post-traumatic stress disorder ( “PTSD”). He was also seeing Mikaela Pope, a psychiatr ist for medication management, once every three months. Test results of a urine sample submitted at the time o f the presentence interview on November 5, 2019, were positive for marijuana. The PSI furt her stated that “[i]t should be noted that the defendants [sic] bond was not revoked per Jud ge Vincent A Culotta. An Ohio Automated RX Reporting System (“OARRS”) report generated o n November 21, 2019 provided negative results.” {¶9} The trial court sentenced Mr. Ryan to two years of community co ntrol

sanctions on each count to be served concurrent to each other. Included in his community control sanctions were a prohibition against alcohol use and th e possession, use, or4

Case No. 2021-L-032 control over any controlled substance, including marijuana; a r equirement to attend Alcoholics/Narcotics Anonymous; and the requirement to inform t he Adult Probation Department of any changes in prescribing providers and/or pharm acies. The court noted

that a violation of his sentence would result in a more restric tive sanction, a longer sanction, or a prison term of 18 months on count one and 12 mon ths on count two, for a total prison term of 30 months. {¶10} Several months later, the state filed a motion to terminate com munity control sanctions with a letter from the Adult Probation Department ind icating Mr. Ryan’s community control should be revoked because he was cited for fa iling to reinstate/expired plates, abusing harmful intoxicants, and possession of drug par aphernalia. {¶11} The trial court found Mr. Ryan guilty of failure to reinstate/e xpired plates and abusing harmful intoxicants. The court further found Mr. Ryan not guilty of possession of drug paraphernalia because the charge had been dismissed. {¶12} The trial court continued Mr. Ryan’s community control for a to tal of two years and imposed further sanctions and conditions, which inclu ded 90 days in jail, with 25 days served; participation in the North East Ohio Community Alternative Program (“N.E.O.C.A.P.”); abstaining from drugs and alcohol; submitting to periodic screens; attending three Alcoholics/Narcotics Anonymous meetings per wee k; taking all prescribed medications and only as prescribed; and requiring Mr. Ryan to h ave “only one (1) prescribing physician, one (1) dentist, and one (1) pharmacy. The Defendant shall sign all necessary medical releases and is to inform the Lake County Adult Probation Department of any change in providers. The Defendant is to adv ise all providers of any

addiction.”5

Case No. 2021-L-032 {¶13} Based on the recommendations of the Lake County Adult Probation Department and N.E.O.C.A.P., the trial court later vacated the condition of Mr. Ryan’s community control sanctions requiring him to serve 30 days in t he Lake County jail and participate in the Transitional Reporting Program. {¶14} Several months later, the state filed a second motion to termin ate community control with an attached letter from the Adult Probat ion Department, which alleged five violations of Rule No. 8 of the Lake County Court of Common Pleas/Adult Probation Department Rules because Mr. Ryan used his medical ma rijuana card five times at The Botanist, a dispensary in Wickliffe, Ohio, on Octo ber 23, 2020, October 27, 2020, October 29, 2020, October 30, 2020, and November 6, 2020. The state later filed a supplement also alleging five violations of Rule No. 1. {¶15} Rule No. 8 states: “You shall not use, possess, or have under your control any controlled substance not prescribed to you by a licensed ph ysician. Use of alcohol is prohibited.” Rule No. 1 states: “You shall obey all local, state, and federal laws. (You will be arrested for violating any local, state, or federal law s.)” {¶16} Mr. Ryan’s probation officer, Nicole Randazzo (“Ms. Randazzo”), testified at the probation violation hearing that she discovered the alle ged violations upon receipt of Mr. Ryan’s OARRS (Ohio Automatic Rx Reporting System) report , which was admitted into evidence. The dispensary reported the purchases on the OA RRS report, noting the quantity of marijuana and the number of days allotted, i.e., Mr . Ryan purchased the marijuana in quantities that were for two- and three-day period s. {¶17} During his office visit with Ms. Randazzo, Mr. Ryan admitted to filling “prescriptions” for medical marijuana at The Botanist. He also told her he had disposed6

Case No. 2021-L-032 of the drugs after getting into an argument with his girlfriend . Ms. Randazzo further testified that she “had a question for him as to how he was fil ling prescriptions for medical marijuana and testing * * * negative. So my questions were: ‘ Were you using the marijuana or were you selling marijuana?’” Mr. Ryan told her h e was neither using nor selling, rather, he was “stockpiling” the medical marijuana. {¶18} On cross-examination, Ms. Randazzo testified she requested that the prosecutors file a probation violation for Rule No. 8 of the Ad ult Probation Department’s rules. She further stated that Mr. Ryan did not test positive for marijuana during that time frame, nor did he purchase more than the prescribed amount in v iolation of medical marijuana card regulations. Ms. Randazzo was aware that Mr. Ry an suffered from anxiety and panic attacks related to incidents with his treatme nt counselor from Lake Geauga Center, where the counselor solicited drugs from him whi le he was in drug counseling. She agreed that Mr. Ryan was compliant with all th e other conditions of his community control. {¶19} The court inquired if Mr. Ryan was supposed to “have one doctor , one dentist, and one pharmacy?” Ms. Randazzo explained that Mr. Ry an was required to inform his probation officer of all pharmacies and doctors. Mr . Ryan had a prescription for other medication, which he filled at Rite-Aid, but he never advised her that he used or was planning to use his medical marijuana card at The Botanist. {¶20} The trial court found that Mr. Ryan violated the terms and cond itions of his community control sanctions by violating Rule No. 1 and Rule No . 8 when he used his medical marijuana card at The Botanist on five occasions. The court also found he was not amenable to community control and imposed concurrent prison terms of 17 months7

Case No. 2021-L-032 on count one, trafficking in L.S.D., and 11 months on count two , aggravated possession of drugs. {¶21} Mr. Ryan raises one assignment of error on appeal: {¶22} “The trial court erred in issuing probation restrictions that w ere in violation of the provisions of the Ohio M edical Marijana [sic] laws.” Sentencing Standard of Review {¶23} “‘A community control revocation hearing is not a criminal tria l, so the state is not required to establish a violation of the terms of the co mmunity control “beyond a

reasonable doubt.”’” State v. Motz , 2020-Ohio-4356, 158 N.E.3d 641, ¶ 26 (12th Dist.), quoting State v. Kincer , 12th Dist. Clermont No. CA2005-07-059, 2006-Ohio-2249, ¶ 5. Rather, the state need only present substantial evidence of a v iolation of the defendant’s community control. Id. ; State v. Pickett , 12th Dist. Warren No. CA2014-09-115, 2015- Ohio-972, ¶ 13

. {¶24} Further, we review a trial court’s finding of a community contr ol violation under an abuse of discretion standard, and a “trial court’s dec ision to revoke community control even for a ‘minor’ violation, is not an abuse of discre tion.” (Citations omitted.)

State v. Bika , 11th District Portage Nos. 2018-P-0096 & 2018-P-0097, 2019-Oh io-3841, ¶ 28. An abuse of discretion is a term of art, “connoting judg ment exercised by a court, which does not comport with reason or the record.” Id. , quoting State v. Underwood , 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089, ¶ 30, citing State v. Ferranto , 112 Ohio St. 667, 676-78 (1925). Stated differently, an abuse of discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal decision-making.’” Id. at ¶ 28, quoting State v.8

Case No. 2021-L-032 Beechler , 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.Rev.2004). {¶25} “‘A trial court does not abuse its discretion by revoking an of fender’s community control where the violation in question was one over which the offender had

control.’” State v. Noonan , 12th Dist. Butler Nos. CA2018-10-203 & CA2018-10-204, 2019-Ohio-2960, ¶ 19, quoting State v. Tranter , 12th Dist. Clermont No. CA2000-05-035, 2001 WL 290192, *3 (Mar. 26, 2001). A trial court also does no t abuse its discretion in revoking community control “‘when the offender is on notice tha t successful participation in a particular program is a requirement of the community contr ol and the offender is unsuccessfully discharged from the program.’” Motz at ¶ 28, quoting State v. Smith , 12th Dist. Warren No. CA2019-09-104, 2020-Ohio-3235, ¶ 8. The privi lege of community control rests upon a defendant’s compliance with the conditions of community control and any violation of those conditions may properly be used to revok e the privilege. Id. {¶26} In his sole assignment of error, Mr. Ryan contends the trial co urt erred in issuing probation violations that were in contravention of the OMMCP.

The OMMCP {¶27} The OMMCP is contained in R.C. Chapter 3796 and defines “medica l marijuana” as “marijuana that is cultivated, processed, dispens ed, tested, possessed, or used for a medical purpose.” R.C. 3796.01(A)(2). {¶28} At the outset and despite some argument to the contrary, we mus t clarify that marijuana continues to be illegal under federal law. See 21 U.S.C. 841(a)(1) and 844. Thus, it remains illegal for physicians to prescribe the controlled substance. A medical marijuana card, referred to as a “registry identificati on card” pursuant to Ohio9

Case No. 2021-L-032 Adm.Code 3796:7-1-01(E), is not a prescription, but rather, is issued based on a physician’s “recommendation” for its use. See R.C. 4731.30; Adm.Code 4731-32-02. Further, a dispensary is not a pharmacy. A “‘dispensary’, as u sed in Chapter 3796. of the Revised Code, means an entity licensed pursuant to sections 379 6.04 and 3796.10 of the Revised Code and any rules promulgated thereunder to sell medic al marijuana to qualifying patients and caregivers.” Ohio Adm.Code 3796:1-1-01 (A)(13). Community Control Sanctions {¶29} Pursuant to R.C. 2929.15(A)(1), “[t]he court may impose any oth er conditions of release under a community control sanction that t he court considers appropriate, including, but not limited to, requiring that the offender not ingest or be injected with a drug of abuse and submit to random drug testing as provided in division (D) of this section to determine whether the offender ingested or was injected with a drug of abuse and requiring that the results of the drug test indica te that the offender did not ingest or was not injected with a drug of abuse.” 1 {¶30} Thus, R.C. 2929.15(A)(1) vests the trial court with the discret ion to impose any condition of community control conditions or requirements i t deems appropriate. Courts have broad discretion when imposing conditions. State v. Talty , 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 10. The relevant inqui ry to determine whether a court abused this discretion in imposing a condition is three -fold: (1) is the condition reasonably related to rehabilitating the offender, (2) does it have some relationship to the crime of which the offender was convicted, and (3) does it rela te to conduct that is criminal

1

. No sentencing transcript has been submitted on appeal; thus, we presume the regularity of the sentencing proceedings below. State v. Hundzsa , 11th Dist. Portage No. 2008-P-0012, 2008-Ohio-4985, ¶ 19.10

Case No. 2021-L-032 or reasonably related to future criminality and serves the ends of probation. Id. at ¶ 12; State v. Dahlberg , 11th Dist. Ashtabula No. 2020-A-0030, 2021-Ohio-550, ¶ 81. {¶31} This is not the first case we have considered whether prohibiti ng medical marijuana is within the trial court’s discretion. Indeed, in Dahlberg , after applying the Supreme Court of Ohio’s test in Talty , we found that the trial court “was well within its discretion to impose any variety of community control condition s,” including a condition prohibiting “‘[m]arijuana, even if legalized.’” Id. at ¶ 82-83. We also found a clear relationship with the various criminal offenses being committed , i.e., drug use and illegal

firearms in a motor vehicle. Id. at ¶ 83. Lastly, it was “necessary for the court to take into consideration known drug use in fashioning a sentence that woul d ‘rehabilitate the offender’ and prevent future crime.” Id. {¶32} There is no doubt that the community control rules prohibiting violations of local, state, and federal laws and taking or having under his c ontrol controlled substances only when prescribed by a physician were well within the trial court’s discretion to impose, especially under the facts of this case where Mr. Ryan has a hi story of polysubstance drug abuse, and drug trafficking. Moreover, they were restrict ions Mr. Ryan acknowledged and agreed to despite his possession of an active medical marijuana card at the time of his sentencing. {¶33} The PSI noted that during his presentence interview, Mr. Ryan d isclosed the fact that he had an active medical marijuana card at the ti me of sentencing. The PSI also stated that Mr. Ryan has chemical dependency issues, a his tory of marijuana possession and trafficking, and has been diagnosed with “Cannab is Use Unspecified.” Mr. Ryan signed a copy of the Lake County Court of Common Pleas /Department of Adult11

Case No. 2021-L-032 Probation rules, acknowledging and certifying that he fully und erstood them. For him to now argue that the trial court’s imposition of these prohibitio ns is error because they conflict with the OMMCP and that the trial court may not find a violation based on the clear terms of his community control sanctions because he was n ot using the marijuana, only “stockpiling” it, triggers the obvious question - was Mr. Ryan stockpiling it for his own

use at a later time or for sale? Either reason would be a viol ation of the terms of his community control, just as having the marijuana under his contr ol and purchasing it without advising his probation officer were violations. Nor ca n he argue that using his medical marijuana card was a “mistake.” {¶34} Applying the Talty factors, it is clear that prohibiting Mr. Ryan from using marijuana or having it under his control is reasonably related to rehabilitation, the crimes he committed, and serves the ends of probation, i.e., Mr. Ryan pleaded guilty to trafficking in drugs and aggravated possession of drugs. {¶35} In this developing area of the law, several courts have address ed the prohibition of medical marijuana as a community control sanctio n in various procedural stages. For instance, in State v. Owens , 3d Dist. Defiance No. 4-20-08, 2021-Ohio-259, the Third District rejected the appellant’s argument that the t rial court erred by restricting her from using a valid prescription for medical marijuana as pa rt of the terms and conditions of community control during sentencing. Id. at ¶ 11, ¶ 18. The court found that despite a mention of a card and a prescription, these item s were never introduced into evidence, “so we have no way of knowing if they truly exis ted, if they were valid, for how long they were valid, or if they expired at a certain point * * *.” Id. at ¶ 16. Furthermore, the claim was not actually ripe for appeal since t he appellant was not found12

Case No. 2021-L-032 in violation of community control for use of a legitimate, “val id prescription” for medical marijuana. Id. at ¶ 17. {¶36} Likewise, in State v. Donoho , 11th Dist. Geauga No. 2018-G-0151, 2018- Ohio-4950, this court determined that the trial court did not a buse its discretion in refusing to modify community control to permit the appellant to use Mari nol, a man-made form of cannabis, which is a Schedule III controlled substance that req uires a valid prescription from a licensed health professional. Id. at ¶ 12, ¶ 14. The lead opinion found it was premature to address the issue at the time of the appeal becaus e the appellant did not test positive and was not charged with a violation. Id. at ¶ 19. {¶37} In State v. Hobden , 9th Dist. Wayne No. 19AP0056, 2020-Ohio-2877, the appellant informed the trial court during sentencing that he ha d a medical marijuana card issued by a physician. Id. at ¶ 3. The trial court stated that since it could not differ entiate between medical marijuana and recreational uses of marijuana du ring the appellant’s potential 30-day house arrest, it would require him to stop usi ng it entirely. Id. After the appellant objected and filed a motion for reconsideration of it s decision to prohibit medical marijuana during house arrest, the trial court indicated it wou ld provide him with a report date to begin serving a 30-day jail sentence in the county jail

. Id. at ¶ 4. The Ninth District overruled the appellant’s assignment of error and determined th at “[g]iven the trial court’s broad discretion in shaping community-control sanctions, this C ourt cannot say that the trial court’s refusal to allow Mr. Hobden to serve his 30-day j ail sentence on house arrest under these facts was unreasonable, arbitrary, or unconscionabl e.” Id. at ¶ 9. {¶38} In State v. Wertman , 5th Dist. Ashland No. 18 COA 026, 2019-Ohio-7, defense counsel presented mitigating evidence at the sanctions hearing that the13

Case No. 2021-L-032 appellant’s possession of marijuana was for medical purposes. When the trial court challenged why the appellant did not present this as an affirma tive defense, defense

counsel conceded that medical m arijuana was still technically a violation of community control since the appellant did not properly notify his probati on officer about the “prescription” in an appropriately timely manner. Id. at ¶ 13. The Fifth District overruled the appellant’s ineffective assistance of counsel claim, findin g that the appellant admitted and pleaded guilty to the alleged community control violations. Id. at ¶ 35. The sanctions imposed “resulted from his guilty plea, not the statements made by his counsel concerning notification.” Id. Most fundamentally, just as in this case, the appellant provided no evidence in support of such proper notification. Id. {¶39} The Eighth District recently addressed whether a trial court ma y revoke judicial release based on medical marijuana use in State v. Sanchez , 2021-Ohio-1593, 170 N.E.3d 958, ¶ 15 (8th Dist.). During the revocation hearin g, the appellant’s probation officer informed the court that she sent the appellant’s status report to the trial court because the appellant had provided a medical marijuana card for seizures and that “some judges have allowed medical marijuana use during community cont rol supervision.” Id. at ¶ 9. The trial court responded negatively and asked about t he probation department’s standard terms regarding drug use. Id . The probation officer clarified that it had a “no tolerance” policy and that “there should be no substance use wh atsoever.” Id . The appellant admitted to violating the sanction. Id. at ¶ 18. Although the appellant discussed his medical marijuana card, physician’s letter, and medical con ditions, he did not argue that medical marijuana was or should have been permissible unde r the conditions of his community control or that he lacked notice that medical marijua na use would be a14

Case No. 2021-L-032 violation. Id. at ¶ 19. The court concluded that the trial court did not err in finding substantial proof that appellant had violated the conditions of his community control. Id. at ¶ 20. {¶40} Likewise, in this case, Mr. Ryan admitted to violating his comm unity control sanctions. He failed to submit any evidence at the revocation hearing, including his medical marijuana card or evidence that the use of marijuana wa s a medical necessity. Further, he had notice and agreed to the trial court’s terms th at possession of or using, which includes procuring, a controlled substance would be a vio lation of his community

control. {¶41} While we are cognizant of the competing issues surrounding craf ting meaningful community control sanctions for defendants suffering with substance abuse or other underlying medical conditions and the OMMCP, this is n ot the case where the intersection of law and medicine has been presented and can be addressed. Further, our determination in this case does not preclude a defendant from r aising the use of medical marijuana pursuant to the use of a valid medical marijuana card as an affirmative defense under the proper circumstances. {¶42} As the United States District Court for the Eastern District of Virginia succinctly stated, albeit under different state laws, “the ques tion before the Court is not whether possession of marijuana is a crime for which one can be federally prosecuted in Virginia, but whether Defendant violated the conditions of his supervised release. One of the conditions of Defendant’s supervised release was that he ‘r efrain from any unlawful use of a controlled substance.’ * * * Under federal law, marij uana is a controlled substance and Defendant was found to have possessed marijuana o n at least five15

Case No. 2021-L-032 occasions. Another condition of Defendant’s supervised release was that he ‘not commit another federal, state, or local crime.’ * * * In Virginia, po ssession of marijuana is both a

federal and a state crime. Defendant did not contest his use o f marijuana. Consequently,

the Court found that Defendant had violated the conditions of h is supervised release and reluctantly imposed sentence.” United States v. Guess , 216 F.Supp.3d 689, 697-698 (E.D.Va.2016). {¶43} Finding Mr. Ryan’s sole assignment of error to be without merit , the judgment of the Lake County Court of Common Pleas is affirmed.

CYNTHIA WESTCOTT RICE, J., JOHN J. EKLUND, J.,

concur.